Peter Smith considers where
the same-sex marriage debate lies in Britain today. There are foreseen
consequences of redefinition: the severe hindrance of the freedom of
expression and the reasonable manifestation of religious belief, and a
profound effect on the provision of fundamental public services.
Back in January I
set out David Cameron’s proposals for creating same-sex marriage,
which he announced at the British Conservative Party’s annual
Conference in October 2011, alongside some arguments against those
plans.
A year later, the controversy
has moved on. There are now two parallel movements for same-sex
marriage in the UK, a result of the devolution of powers to the
Scottish Government. A consultation in Scotland ended in December 2011 and its results were snuck out shortly before Olympic fever dominated the Isles.
It is notable how divisive
same-sex marriage has been north of Hadrian’s Wall: an ‘unprecedented’
77,508 responses were received in the ‘largest consultation exercise
of its type ever held in Scotland’. Over 33,000 responses were
submitted via forms amended by organisations with an interest in the
two core proposals of same-sex civil marriage and religious civil
partnerships. Opponents of same-sex marriage pipped supporters 52:48,
but more than two thirds opposed religious civil partnerships.
Nonetheless, the Scottish Government intends on
continuing to legalise both relationships, and the Catholic Church –
numerically and financially the largest single supporter of
traditional marriage – has since ceased dialogue with Edinburgh on the matter.
Down south, we are a step behind. The Home Office has also consulted on
its plans to create such relationships in England and Wales, but they
are effectively limited to same-sex marriages and not religious civil
partnerships. After months of campaigning, two umbrella organisations
broadly covered the diverse faiths, standpoints and interest groups
in the opposing camps. In favour of same-sex marriage stands the Coalition for Equal Marriage, and its slick media campaign,Out4Marriage.org,
which publishes clips of well-known proponents of gay marriage such
as Boris Johnson and Hugh Grant ‘coming out’ in support of the move.
Against liberalisation is the Coalition for Marriage,
based out of the Christian Institute’s offices in Newcastle, which
has mobilised tens of thousands of Christians to sign petitions and dominate the postbags of Members of Parliament.
The Home Office consultation
ended in June, and the results are unlikely to be known this calendar
year. It is safe to say that there have been a considerable number of
responses from both sides (although, as in Scotland, many will be
standard pro-forma that campaign groups have handed out and emailed to
supporters). Polls favouring both positions have been published. If,
following the publication of the consultation document, the Government
in Westminster puts legislation before Parliament in the new year, it
is likely to be passed by the second anniversary of Cameron’s speech
in 2013. But will that legislation be tabled?
Opening Pandora’s box
The best hope for opponents of
same-sex marriage in England is for the Government to conclude it is
too difficult to pass coherent and stable legislation that creates such
marriages in the narrow circumstances so far envisaged. Social
conservatives should not be too hopeful that such sense will prevail:
Nick Clegg, the Deputy Prime Minister, gave a glimpse of the liberal
class’s mindset when his staff trailed a speech in which he described
supporters of traditional marriage as “bigots” – a slur he was rapidly forced to retract.
As an example of the radical legal consequences of redefining marriage, the Coalition for Marriage has recently released a précis of
a legal opinion by Aidan O’Neil QC, an expert in equality and
discrimination law who practises from the same barristers’ chambers as
Tony Blair’s wife, Cherie Booth. O’Neil was instructed to consider the
implications for religious conscience and religious liberty arising
from redefining marriage in England and Wales, and he considers the
interplay between the Equality Act 2010 (including the Public Sector
Equality Duty (PSEQ)), the European Convention on Human Rights, and case
law on point. The PSEQ compels public authorities – including state
schools, councils and the National Health Service – to “have due regard
to the need to eliminate discrimination, harassment, victimisation
and any other conduct that is prohibited...” when exercising their
public functions. This includes the obligation to “tackle prejudice”
and “promote understanding” between homosexual and heterosexual
people.
It is a far-reaching obligation
on an enormous range of bodies and organisations, and it reduces
substantially the lawful opportunities for supporters of traditional
marriage to explain – let alone mention – their views. The Coalition
for Marriage asked O’Neil to consider some hypothetical situations
where religiously-minded people could find themselves in difficulties –
and potentially fired from their jobs. Here are elaborations of some
of his examples (the précis contains more), which focus on practical
positions that readers of MercatorNet might find themselves in,
should the prohibition on same-sex marriage be removed. (For brevity,
the precise legal reasoning is omitted. What follows is a
characterisation of the legal positions, which are necessarily latent
or untested propositions.)
The chaplain
A hospital chaplain is also a
local Church of England vicar. Suppose he preaches, at a private
wedding service in his church, that marriage is between only one man
and one woman. If his hospital employers were to hear of this action,
they could take into account his conduct outside of the workplace when
determining whether the chaplain was acting in accordance with the
requirements of his hospital work and the ethos of the hospital. This
is true for any chaplain employed with the public sector (e.g. within a
university or the Armed Forces) who, in all likelihood, would have a
duty to accept only that marriage could be between two people
of the same sex, and that any contrary restrictive view would lead to
their lawful dismissal as this view would be ‘un-ethical’, ie, against
the prevailing ethos.
The teacher
A teacher is told by her head
that she must use in class a book recommended by the local council and a
gay advocacy charity. This book is about a man who falls in love with
a prince and marries him. If the teacher asked to opt out of using
the book on the grounds of conscientious objection, she would be
refusing to obey the otherwise lawful instructions of her employers,
thus constituting grounds for her dismissal. Moreover, it would make
no difference if the school was a faith school or any type of school
with a religious ethos or none.
The child
A child says in a school
assembly that he thinks marriage is only between a man and a woman, on
religious grounds. The assembly theme is on marriage and same-sex
marriage is discussed. The child is subsequently bullied but the school
takes no action. Because the school is under a duty to teach about
marriage, and because marriage would mean same-sex marriage, a school
which taught marriage equality (same-sex and opposite-sex marriages are
the same) would not be discriminating against the child’s religious
views. Furthermore, the school is potentially under a duty to ensure
that the curriculum it teaches is delivered in a way that discourages
and even eliminates the attitudes held by its pupils that involve
sexual orientation. This potentially implies that it may brook no
dissent from the redefinition.
The parents
Concerned parents learn that
their school is planning a gay and lesbian history month, including
lessons on ‘the campaign for marriage equality’. The parents insist
that they have the right to withdraw their child from these history
lessons. In fact, even if the school were a faith school teaching a
subject in a manner contrary to the orthodox teachings of that faith,
the parents would be completely unable to withdraw their child from
these lessons, and the European Convention would not facilitate it.
The foster couple
Couples who apply to become
foster carers and, during the interview process, let it be known that
they could not support same-sex marriage, could be barred by a local
authority or council from continuing with their application. The local
authority is under an obligation to investigate the views of potential
foster parents, and to consider the extent to which those views might
influence and affect the behaviour and treatment of a child in their
care. As a public authority, the council is under an obligation to
safeguard and promote the welfare of looked-after children and this
could be construed to include the prevention of exposure to an
environment that is potentially exclusive of same-sex marriage.
The crucial lesson of civil partnerships
It is worth noting again the
analogy between same-sex marriage and civil partnerships in England and
Wales. When the Civil Partnerships Act was winding its way through
Parliament in 2003 and 2004, Tony Blair promised that no religions
would be compelled to carry out partnerships. In fact, religious
readings, music or symbols were prohibited from the partnership
ceremony. However, with only cursory scrutiny by Parliament, this ban
was lifted in December 2011. This substantial change in civil
partnership policy demonstrates that religious leaders should be very
wary of accepting any ‘red line’ promises from ministers (even the Prime
Minister) as a way of ameliorating opposition to the current
proposals.
In the current proposals, there
will be a blanket ban on religious ceremonies in England and Wales.
This is effectively a religious exemption and means thatchurches and
ministers cannot host or celebrate same-sex marriages. However, the
O’Neill opinion suggests there is would be a strong case that a blanket
ban would be overturned by European human rights law. The material
provision is Article 12 of the European Convention, which establishes a
right for two individuals to marry: “men and women of marriageable
age have the right to marry and found a family...”
O’Neil raises the spectre of a fundamental reinterpretation of this Article, from the right of one man and one woman to
marry, to same-sex couples, if redefinition occurs in English law.
The consequence of this would be to open up other legal avenues, like
human rights law, to support same-sex marriage. This could spell the
end of the religious exemption.
Even if churches were allowed
to conduct same-sex marriages, it would be mistaken to think that a
happy settlement could be reached whereby those vicars who accepted it
would be free to do so, whilst supporters of traditional marriage
would be free not to. Because of the established identity of the
Church of England, granting the Church a unique and privileged place
amongst religions in England, once any vicar allows same-sex marriages
it becomes untenable in law for the whole Church not to participate.
Thus O’Neil concludes:
“Churches might indeed better
protect themselves against the possibility of any such litigation by
deciding not to provide marriage services at all, since there could be
no complaint then of discrimination in their provision of services as
between same sex and opposite sex couples.
“And, in principle, the Church
of England might be better protected under any such claim if it were
disestablished in the sense that its clergy were no longer placed under
formal legal obligations by the general law to solemnise the
marriages of all and any person otherwise eligible to marry under the
general law...”
It isn’t too late, Mr Cameron
Already, MPs are queuing up to remove the hypothetical ban on same-sex marriages in religious places, and Ed Milliband, the leader of the opposition Labour Party, appears to have outflanked Cameron in the latter’s rush to social liberalism.
If same-sex legislation is
pushed into the House of Commons, David Cameron will likely see a
back-bench rebellion from his own MPs on the right of the Party, who
are vociferously opposed to the measures. He knows that many Tory MPs
hold seats where the UK Independence Party and the Liberal Democrats
cannot oust the incumbent Conservatives in a fair fight, but they can
succeed if the Tory vote is split (over Europe, for instance) or
because Conservative voters simply absent themselves on election day
because they are angry or disappointed at the Party leadership. Gay
marriage is such an issue.
In any event, Cameron will be
left in the embarrassing position of relying on Liberal Democrat and
Labour support for a majority to be secured (particularly as he is
likely to give a free vote), and he will see the Parliamentary
Conservative Party split cleanly on this social issue,
conservative/liberal, when unity is needed to push through
controversial healthcare reforms.
Given the political
difficulties of creating same-sex marriage and the legal consequences
of doing so, it would suit him well to put the plans back on the shelf
and move on to getting Britain out of its slump and recession.
Peter Smith is a lawyer living and working in London
